Thursday, May 31, 2007

Tom Smith on Ruth Bader Ginsburg

No one is quite as funny as Tom Smith at discussing legal matters, and he is in rare form in discussing a recent New York Times article lauding Ruth Bader Ginsburg for reading a few recent dissents from the bench (rather than merely letting them appear in print):

I make no claim to be hip to the profundities of the jurisprudence of the U.S. Supreme Court. But can I be the only one whose intelligence is insulted by this attitude of, oh, golly, the Cahart decision is just politics, not law. You start with Roe v. Wade, a decision that sprang, like Athena from the brow of Zeus, out of Justice Blackmun's none too cerebrally blessed head, a decision so appallingly made up that those of us who went to law school in the '80's had to suffer through years of tendentious theories of "non-interpretive judicial review," that is, theories about how making it up isn't really quite exactly making it up, though, in the alternative, it is OK to make things up if you really have to, and then, when decades later, the Court decides, with at least some guidance from Congress, to say, well, abortion is OK, but you know, if it's a baby already, and half-way out, and Congress says so, then, well, you shouldn't just, you know, squish its little head, we have to sit here and listen to the paroxysms of indignation that this is politics, not law. That we run the risk of making poor, old, apolitical, white glove clad Justice Ginsburg descend from the Platonic heaven of pure juridical dispassion, and read her dissent from the bench. Oh, my, we've done it now.